"Non-Germans" Under the Third Reich (9 page)

It accorded well with the pseudolegal procedure by which the absolute Führer principle was to be put into effect in the judicial field that, in the early years of the Third Reich, judicial
independence
and all the principles and institutions that supported it were not simply allowed to be thrown overboard but instead had to be transformed “in the National Socialist spirit.” Only in the later war years could the judicial leadership publicly announce that the term “judicial independence” was soon to vanish entirely, that judges, although not directly answerable to instructions from above, were nonetheless to be “guided” by controls imposed on the judicial system.
⁷⁵
Admittedly, the “new guiding principles for the practice of law,” as formulated by Carl Schmitt, were published in the professional journals as early as 1933,
⁷⁶
well before the National Socialist Jurists’ League (NSRB) published its own guidelines in 1936.
⁷⁷
Schmitt’s principles sought to harmonize the independence of the judge with the absolute Führer principle—a futile undertaking, since the Nazi jurists emphasized judicial independence even while proclaiming, in more or less veiled form, the obligation of the judge to the will of the Führer
⁷⁸
(“the Führer is the supreme German judge, the German judge per se”).
⁷⁹

This discrepancy between theory and practice, which runs like a recurring theme through all of National Socialist judicial policy, is particularly well illustrated by the question of the judicial
right of review
of acts of the legal system and of the administration.

To be sure, the freedom of the judge to test the validity of a legal standard and, when in doubt, not to apply it, was in principle still in effect, but in practice it had ceased to exist with the adoption of the Führer principle. Not only were Reich laws exempt from scrutiny (their examination was controversial even before 1933) but now such exemption also applied to standards of
Land
(state) law as well as decrees of the Reich government or of individual Reich ministers,
⁸⁰
all of which had previously been open to judicial inquiry. This was because such norms were seen as being expressions of the will of the Führer, as “political acts” that were immune to judicial review by virtue of the “nature of the thing.”
⁸¹

Much more significant was the fact that judicial review was rejected even for acts of the
administration,
a prerogative that until then had never been contested. This struck at the core of all judicial activity. Here, too, in their usual equivocal fashion, scholars and the courts affirmed “
in principle
” the judicial examination of administrative acts while at the same time recognizing that there were numerous acts that defied judicial review. These included above all discretionary rulings, whose range of application had been significantly broadened (since in practice there were no limits set upon departmental discretion), as well as so-called political acts, since the “unity of political leadership” did not admit of any ex post facto control.
⁸²
Although from the standpoint of
written law,
only those administrative decrees aimed at carrying out the National Socialist purges of the Civil Service (Civil Service Code)
⁸³
and decrees of the Gestapo
⁸⁴
were exempt from judicial review, as a result of the notion of “unrestricted interpretation” the practice increasingly was that
other
acts of the administration, in particular those of the (security) police, were declared to be immune to judicial review, since they were in any case political in character “by their very nature.”

In so doing, the administration proceeded on the presumption of a substantive definition of what was “political.” Thus the Reich minister of the interior declared all “political” acts (by the state) to be beyond the reach of the judiciary; and the decision as to when an act was political rested exclusively with the political authorities.
⁸⁵
This differed from the legal practice of the Prussian Administrative Supreme Court (Oberverwaltungsgericht), which initially declared acts of the political police to be subject to judicial review, even if it did acknowledge that their discretionary latitude was “to extend as far as possible.”
⁸⁶
Nevertheless, it later shifted position in favor of a
formal
concept of the political, differentiating between (reviewable) acts of the regular police and (nonreviewable) acts of the special police (Gestapo).
⁸⁷

Ultimately, however, the judiciary too fell into line with the
substantive
—and thus unlimited—concept of what constituted “the political.” As early as the precedent-setting ruling of March 19, 1938, the Prussian Administrative Supreme Court declared a police decree issued against a missionary to be “manifestly within the field of activity of the Gestapo” by its very “essence” and thus not subject to review, although it was promulgated by the prefect of a
Land
and not by the Gestapo.
⁸⁸
In summing up a ruling of November 10, 1938, the court defined which administrative acts by the police were no longer subject to review on the basis of the law regulating the Secret State Police enacted February 10, 1936:
⁸⁹
(1) any administrative act of the Gestapo, (2) any administrative act of the regular police authorities that was based on
particular
or
general
directives of the Gestapo, and (3) any administrative act that
substantively
belonged to the jurisdiction of the Gestapo.
⁹⁰
The court reserved the right of review only over those administrative acts of the ordinary (general) police authorities that had no
inner
connection with the duties of the Gestapo.
⁹¹
This conferred upon the Gestapo the authority to remove from judicial control any aspect of life whatsoever, a practice that would lead to grotesque consequences.
⁹²

This development spelled the end of administrative jurisdiction
⁹³
long before the administrative review process was at last formally abolished by a decree of the Führer and Reich chancellor dated September 28, 1939,
⁹⁴
and replaced by an administrative appeals process, which provided for an appeal to the administrative courts only in exceptional cases. To the extent that its raison d’être was still formally recognized at all, the courts’ administrative jurisdiction was no longer interpreted as being part of the
court system,
but rather as a part of the
administration
. The definition of the courts’ scope of responsibility was such that administrative law (administrative courts) and administrative
discretion
were both equally obliged to carry out the will of the Führer (law); that is, they were held to be different in
degree
only, not in
kind
.
⁹⁵
As tirelessly repeated in the literature, administrative jurisdiction was no longer a check on the administration, no longer an “institution for the protection of private interests,” but rather a court of review considering the legality of administrative acts, not, as before, in the interests of the concerned parties but for the sake of ensuring
uniformity
of administration.
⁹⁶
Thus, administrative jurisdiction, like all other legal principles, was stripped of any individual meaning and held to be a component and a “defender” of the so-called objective order of the constitution. Henceforth, therefore, there was to be no more balancing of public versus private interests in administrative court rulings—which, in the “authoritarian state,” would of course always have been decided in the state’s favor—unless such consideration was expressly permitted by special law; rather, the presupposition was that the state’s interests always took precedence.
⁹⁷
Put more succinctly, one could say that, as a rule, the courts have authority over the administration in questions of legality; in the Third Reich, however, the police authorities controlled the courts with a view toward expediency.
⁹⁸

Just as the Führer principle was aimed at transforming the practice of law into a kind of administrative activity, the policy regarding judicial personnel was fundamentally changed and judicial workers firmly locked into the National Socialist state. The call went out for a new, activist type of judge; in place of the judge who was “reserved in deed and full of scruples” came the German “champion of justice,”
⁹⁹
and in place of the “professional pussyfooter,” the “statutearchitect far removed from the
Volk,
” came the courageous, “dynamic” judge.
¹⁰⁰

These slogans too fell on fertile soil, for they corresponded almost word-for-word with aims long familiar in judicial politics. Only with difficulty could the jurists recognize that behind these catchwords was concealed the actual National Socialist call for the destruction of the judge as an independent entity. To the contrary: in the enthusiasm generated by the sense that they were setting out for new shores, they imagined that National Socialist law actually necessitated the “free judge,” the freedom of such a judge being defined as the (quasi-prescribed) commitment to and orientation toward National Socialist values (that is, the will of the Führer) and easily construed and legitimated with the aid of the theory of identity: the judge administered justice as the “agent of the people’s community (
Volksgemeinschaft
),” whose view of justice was embodied in him as well as in the will of the Führer who promulgated the laws, thereby excluding the possibility of differences between the law and the views of the judge.

Thus, what was needed in a “free,” National Socialist judge was a “strong leadership personality” who would not follow mass instincts but administer justice “from his elemental character and from his conscience, which in a true man can only be the expression of the people’s conscience.”
¹⁰¹

In the later years of the Third Reich, however, the judge changed more and more from being the representative of the “community of the people” into a direct arm of the Führer’s authority. The Führer system and its military structure were now transferred quite openly to the function of the judge; the judge was to be the “soldier of the Führer,” the “Führer’s agent” in the judicial domain.
¹⁰²

Indeed, overzealous judges even called for the elimination of the leading role of the Reich Ministry of Justice—saying that the judicial administration now had nothing but a “caretaker function”—and for the transfer of control of the judicial branch to the NSDAP; but these demands were rejected even by the most fanatical proponents of the new National Socialist judiciary.
¹⁰³
“
Völkisch
” academics no longer viewed the judge “primarily as jurist” at all, but rather as a “member of the community”; they called for a political, a “
völkisch
” judge,
¹⁰⁴
a judge who would be a mere “employee” and “executing organ” of the will of the Führer.
¹⁰⁵

Although these demands were a slap in the face to the bench as a whole and all its traditions, the National Socialist Führer principle was in fact accepted as it applied to personnel questions, since the Nazis cleverly made use of many justifiable concerns within the judicial administration. It was clearly recognized that National Socialism did not so much require a “renewal of law” as a “renewal of judges.” Therefore, resorting to models from antiquity, National Socialist judicial reformers called for the renewed recognition of the “value of the personality,” “common sense,” and “modesty and folksiness” on the part of the judge,
¹⁰⁶
all quite popular demands that were meant to find their fulfillment in the
ideal National Socialist judge
(“soldierly in thought and deed,” a “heroic being”).
¹⁰⁷
Furthermore, the National Socialist judge would not only be “close to the people” but also politically drilled. Only men of a certain age and with a history of successful Party work could become judges.
¹⁰⁸
Thus the “Great Judicial Reform”
¹⁰⁹
begun in 1942 by the Reich Ministry of Justice in collaboration with the Academy of German Law was intended, first and foremost, to be a reform of the idea of the judge and his public image, and only secondarily as an organizational reform (“more than reform” we require “persons clear in thought and close to the people”): “By reforming the judges to reform the law.”
¹¹⁰

In the later years of the Third Reich, when the judiciary was forced more and more into the background by administration and police and even declared completely superfluous in its previous form (formal independence) by the new rulers, Party, police, and Security Service (SD)—or at very best considered to be a instrument of the political leadership that could “be corrected” at any time
¹¹¹
—the Führer-dependence of the judge underwent yet another transformation: it was now glorified with the term
immediately answerable to the Führer
. This was a stratagem for the formal preservation of judicial independence, a way to avoid equating judges with administrative officials. The judge was now, as it was formulated in a decree of the Reich Ministry of Justice, “liege of the Führer,” acting only in the name of the Führer and answerable to him alone,
¹¹²
so that intervention by “third parties” was in no case admissible. Making the judiciary directly responsible to the Führer was indeed able to generate a certain amount of protection against those whose object was to abolish it altogether. However, as regards the actual position of the judge, it represented the climax of the destruction of judicial independence. For even a judiciary that was directly dependent upon the will of the Führer remained a thorn in the side of Hitler and the Nazi leadership, since, if we view the judiciary as an abstract entity, it reached its decisions as an institution based upon certain notions of justice (of whatever kind) and not upon police
expediency,
and thus it contradicted, in its very
essence,
the Führer principle’s assertion of absolute authority. All corresponding National Socialist reform plans were thus doomed to failure, since they were based upon the Führer principle and at the same time tried somehow to preserve judicial traditions. Just how irreconcilable the two principles were, and how deeply the judicial administration was caught in the web of this insoluble contradiction, is shown by the draft proposal of the Reich Ministry of Justice for a new law regulating judges dated June 15, 1944,
¹¹³
which on the one hand emphasized that the Führer was the supreme legislator as well as the lawful magistrate in whose name the judge administered justice and on the other hand declared that the legal order was the embodiment of the fundamental moral ideas of the people (“comradeship,” “fidelity,” etc.), which in turn were derived from National Socialism (and thus from the will of the Führer).